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4.19.2011

The Indian Supreme Court as Superlegislature

Does the Indian Supreme Court sometimes act like a legislature? Apparently so, according to Indian Supreme Court Chief Justice Shri Kapadia.

In quite provocative comments delivered a few days ago at the 5th annual M.C. Setalvad Lecture on Canons of Judicial Ethics, Chief Justice Kapadia cautioned that the Indian Supreme Court "must refuse to sit as a super-legislature to weigh the wisdom of legislation.” Judges, he added, should take care to "not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to enact laws."

Some/many observers of comparative constitutional politics consider the Indian Supreme Court the most activist of any liberal democracy. And perhaps with reason, given the Court's broad judgments on human rights, political freedoms, gender equality, environmental protection, and social welfare. What also features prominently on the list is the Supreme Court's basic structure doctrine, which Indian judges have deployed to invalidate duly-passed constitutional amendments.

Chief Justice Kapadia's warning that the Supreme Court risks both acting like and being perceived as a superlegislature is sure to arouse the interest of Indian and comparative scholars alike.

The full lecture is archived as a video recording here.

2 comments:

  1. CJI Kapadia's caution has not come too soon. The Cort has seriously erred in constitutional interpretations which has seriously affected the power arrangement as given in the text originally adopted and has made for over-politicisation and judiciocracy. A political oligarchy governs where rule of law is uncertain and corruption has eaten into the vitals of even the judiciary.The court will have to come strongly into policy control instead of dispute resolution and work the constitutional power overlaps as structured instead of re-writing them as the judges like. After all the province of judicial power is to say authoritatively what the law IS.

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